Case 2:16-cv-00771-RSL Document 40 Filed 09/19/16 Page 1 of 10

HONORABLE ROBERT S. LASNIK

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ELSTER SOLUTIONS, LLC, a Delaware
Limited Liability company,

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MUCKROCK FOUNDATION, INC.’S
RULE 12(b)(6) and 12(b)(1) MOTION TO
DISMISS

Plaintiff,

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v.

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THE CITY OF SEATTLE, a municipal
corporation; SEATTLE CITY LIGHT, a
publicly owned utility, MUCKROCK
FOUNDATION, INC., a Massachusetts
corporation; and PHIL MOCEK, an
individual,

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NO. 2:16-cv-00771 RSL

NOTED FOR HEARING: OCTOBER 14,
2016

Defendants.

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INTRODUCTION

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The claims against Defendant MuckRock Foundation, Inc. (“MuckRock”) must be

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dismissed because it is merely a neutral platform that lacks any interest in the underlying

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documents, and is granted broad immunity by Section 230 of the Communications Decency Act

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from liability for damages and suit. Even without such immunity, the complaint is bereft of any

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allegations against MuckRock, and this alone warrants dismissal. But there is no dispute that

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MuckRock is a neutral platform that merely makes available tools people can use to make public

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records requests. Under Section 230 of the Communications Decency Act, 47 U.S.C. § 230,

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MuckRock cannot be held liable for any documents posted to its site by third parties should

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Defendant City of Seattle or any of its components release documents at issue in this case to the
DEFENDANT MUCKROCK FOUNDATION, INC.’S
MOTION TO DISMISS
CASE NO. 2:16-cv-00771 - 1

focal PLLC
900 1st Avenue S., Suite 203
Seattle, WA 98134
206.529.4827

 Case 2:16-cv-00771-RSL Document 40 Filed 09/19/16 Page 2 of 10

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requestor, Defendant Phil Mocek. Therefore, MuckRock should be dismissed from this lawsuit.
This is a public records lawsuit brought by Plaintiff Elster Solutions, LLC (“Elster”),

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seeking to enjoin the disclosure of information under the Washington Public Records Act. The

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underlying dispute about whether the records at issue are trade secrets has nothing to do with

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MuckRock. MuckRock did not request, nor does it currently possess, any of Elster’s documents

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that are subject to this Court’s previous orders and the relief Elster seeks.
Pursuant to FED. R. CIV. P. 12(b)(6) and 12(b)(1), MuckRock hereby moves for an order

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dismissing all of Elster’s claims against MuckRock.
FACTUAL BACKGROUND

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A.

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MUCKROCK IS A NEWS SITE AND PUBLIC RECORDS REQUEST
PLATFORM

MuckRock is a nonprofit collaborative news site, public records archive, and online

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service that provides journalists, researchers, and the general public the ability to request and

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access hundreds of thousands of government documents. Declaration of Michael Morisy

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(“Morisy Decl.”) ¶¶ 1-2. Through its services, MuckRock aims to make politics more transparent

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and democracies more informed.1 Id.
MuckRock offers online tools to facilitate requesting and tracking state and federal public

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records requests. Id. at ¶¶ 2-5. MuckRock provides users with a unique email address for each

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request they file. Id. at ¶¶ 3. When agencies respond to the unique MuckRock email address

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provided to the requestor, the correspondence and any documents are automatically uploaded to

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MuckRock’s website and made public, enabling users to track their requests and all the

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documents they have received. Id. at ¶¶ 4-5. MuckRock also provides its users with helpful

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information on how to file a public records request and hosts a forum where users can help each

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The site and its features have received extensive media coverage. See, e.g., Joseph
Lichterman, “FOIA site MuckRock launches new efforts to let users track projects and contribute
to reporting costs,” Nieman Lab, Sept. 3, 2015 (available at <
http://www.niemanlab.org/2015/09/foia-site-muckrock-launches-new-efforts-to-let-users-trackprojects-and-contribute-to-reporting-costs/>).
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DEFENDANT MUCKROCK FOUNDATION, INC.’S
MOTION TO DISMISS
CASE NO. 2:16-cv-00771 - 2

focal PLLC
900 1st Avenue S., Suite 203
Seattle, WA 98134
206.529.4827

 Case 2:16-cv-00771-RSL Document 40 Filed 09/19/16 Page 3 of 10

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other with their public records requests. Id. at ¶ 7.
MuckRock has no control over the requests users file or the public records they receive.

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While MuckRock generally supports its users’ goals to make government more transparent, it

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has no interest in or any control over any of its users’ requests or the records they may receive.

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Id. at ¶ 6
MuckRock also supports investigatory journalism, academic research, and activism.

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Because the records requested by MuckRock’s users are public and searchable, journalists and

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other users of the site can comb through the site’s archives to identify newsworthy stories or

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unearth new areas of research. Journalists also publish reports on MuckRock daily that are based

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on the public documents they obtained via MuckRock. Id. at ¶ 8.

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B.

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On April 12, 2016, Phil Mocek used MuckRock’s platform to file a public records

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PHIL MOCEK’S REQUEST TO SEATTLE CITY LIGHT

request with the City of Seattle and Seattle City Light. Id. at ¶ 9. The request sought:

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Plans for, schedules of, policies dictating the performance of, requests for proposals
to, contracts for, discussion of, and results of all security audits performed of “smart
meter” devices (remotely-addressable electrical meters sometimes referred to as
“advanced metering infrastructure”), along with metadata. These devices are
designed to replace traditional electric meters. They contain sensors that monitor
activities inside subscribers’ premises and automatically communicate information
collected by those sensors to machines in remote locations.

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On April 19, 2016, Seattle City Light responded to Mocek’s request and provided him

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with two documents.2 Id. at ¶ 10. As explained above, unless the requestor changes the default

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settings, MuckRock automatically posts all correspondence between a requestor and the

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government along with any documents received. The two documents Seattle City Light produced

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to Mocek were thus automatically published on MuckRock’s website on April 19. Id. at ¶ 11.

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//

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Correspondence between Mocek and Seattle is available at
https://www.muckrock.com/foi/seattle-69/smart-meter-security-audit-plans-schedules-proposalscontracts-discussion-results-seattle-10378/#comms.
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DEFENDANT MUCKROCK FOUNDATION, INC.’S
MOTION TO DISMISS
CASE NO. 2:16-cv-00771 - 3

focal PLLC
900 1st Avenue S., Suite 203
Seattle, WA 98134
206.529.4827

 Case 2:16-cv-00771-RSL Document 40 Filed 09/19/16 Page 4 of 10

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C.

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MUCKROCK WAS NAMED IN THREE SUITS RESULTING FROM
MOCEK’S REQUEST AND HAS BEEN DISMISSED FROM TWO SUITS

Between May 24 and 25, 2016, Elster and several other companies contacted MuckRock

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and notified the website that they would each be seeking temporary restraining orders and

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preliminary injunctions barring release of the records Seattle planned to release to Mocek, as

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well as seeking to de-publish the two documents Mocek had already received that had been

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posted to the MuckRock website. Morisy Decl. ¶¶ 12-13. These companies initiated three

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separate lawsuits, each naming MuckRock as a defendant: (1) Landis+Gyr Technologies, Inc. v.

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City of Seattle, No. 16-2-12149-7 SEA; (2) Ericsson, Inc. v. City of Seattle, No. 16-2-12262-1

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SEA; and (3) this lawsuit. In the Landis+Gyr case, Judge Downing dissolved a temporary

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restraining order issued against Mocek and MuckRock, citing the First Amendment interests at

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stake. See Declaration of Venkat Balasubramani, Ex. A. The plaintiffs in the two other cases

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subsequently dismissed MuckRock as a defendant. See MorisyDecl. ¶¶ 14-15 & Exs. A, B.

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In the present case, Elster alleges that MuckRock directly submitted the underlying

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public records request to the City of Seattle. Dkt. No. 1, Complaint ¶¶ 2, 18. Elster further

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alleges that releasing unredacted versions of the requested documents would violate

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Washington’s Uniform Trade Secrets Act, RCW Chapter 19.108, and the Public Records Act,

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RCW Chapter 42.56. Id. ¶¶ 23-34.
ARGUMENT

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A.

LEGAL STANDARDS GOVERNING 12(B)(6) AND 12(B)(1) MOTIONS

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Under Federal Rule of Civil Procedure 12(b)(6), dismissal of one or more claims is

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appropriate if the pleading fails to state a claim upon which relief can be granted. FED. R. CIV.

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P. 12(b)(6). Dismissal can be based on “the absence of sufficient facts alleged under a cognizable

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legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). The

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pleadings must raise the right to relief beyond the speculative level, and a plaintiff must provide

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“more than labels and conclusions, and a formulaic recitation of the elements of a cause of action

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will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). On a motion to dismiss, the
DEFENDANT MUCKROCK FOUNDATION, INC.’S
MOTION TO DISMISS
CASE NO. 2:16-cv-00771 - 4

focal PLLC
900 1st Avenue S., Suite 203
Seattle, WA 98134
206.529.4827

 Case 2:16-cv-00771-RSL Document 40 Filed 09/19/16 Page 5 of 10

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Court is not required to accept as true legal conclusions couched as factual allegations. Iqbal,

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556 U.S. 662, 678 (2009). A complaint “must contain specific factual allegations regarding each

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Defendant that would enable the Court to conclude that a claim exists.” Williams v. Duong, No.

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C 05-2105 CW, 2007 U.S. Dist. LEXIS 58725, at *2 (N.D. Cal. Aug. 1, 2007); see also Yates v.

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Naphcare, Inc., No. 2:12-cv-01725-JCM-VCF, 2014 U.S. Dist. LEXIS 71077, at *9 (D. Nev.

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May 22, 2014) (“Plaintiff therefore must present specific allegations of actual fact, not

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conclusory labels, tending to establish a causal connection between the alleged events and the

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involvement of each defendant named in the pleadings.”).
Under FED. R. CIV. P. 12(b)(1), a court must dismiss an action if it determines that it

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lacks subject matter jurisdiction. “Federal courts are courts of limited jurisdiction. . . . It is to be

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presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the

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contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,

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511 U.S. 375, 377 (1994). Thus, once jurisdiction is questioned, the party opposing the motion to

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dismiss must “satisfy its burden of establishing that the court, in fact, possesses subject matter

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jurisdiction.” Ass’n. of Am. Med. Colls. v. United States, 217 F.3d 770, 778 (9th Cir. 2000)

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(internal quotations omitted). Article III standing is a threshold requirement for federal court

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jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992). Standing requires the

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party invoking federal jurisdiction to establish three elements: (1) injury in the form of an

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invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or

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imminent, not conjectural or hypothetical; (2) a causal connection between the injury and the

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defendant's conduct; and (3) the likelihood, not mere speculation, that a favorable decision will

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redress the injury. Id. at 560-61. A plaintiff is required under Lujan to establish “standing as to

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each defendant sued.” Buchholz v. Rural Cmty. Ins. Co., No. 05-C-0115-C, 2005 U.S. Dist.

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LEXIS 14807, at *4 (W.D. Wis. July 20, 2005). A court considering a Rule 12(b)(1) motion to

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dismiss for lack of subject matter jurisdiction may consider “affidavits or any other evidence

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properly before the court,” even material extrinsic to the pleadings. Id.

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//
DEFENDANT MUCKROCK FOUNDATION, INC.’S
MOTION TO DISMISS
CASE NO. 2:16-cv-00771 - 5

focal PLLC
900 1st Avenue S., Suite 203
Seattle, WA 98134
206.529.4827

 Case 2:16-cv-00771-RSL Document 40 Filed 09/19/16 Page 6 of 10

B.

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THE COMPLAINT FAILS TO ALLEGE ANY INVOLVEMENT
WHATSOEVER BY MUCKROCK

The Court should dismiss MuckRock from the lawsuit due to the obvious deficiencies in

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in Elster’s allegations in the Complaint. With respect to MuckRock, the Complaint contains

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precisely the type of bare, conclusory, or formulaic allegations the Court said were insufficient in

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Iqbal. See Yates, 2014 U.S. Dist. LEXIS 71077, at *8 (“[b]are, conclusory and formulaic

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allegations of involvement do not state a claim for relief against a particular defendant”).
The Complaint mentions MuckRock in only three paragraphs, and in all three instances

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fails to specify any conduct by MuckRock that underlies any purported claim against it. (See

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Complaint ¶¶ 2, 6, 18.) Paragraph 6 references MuckRock’s domicile and state of incorporation.

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Paragraph 18 merely recites that Phil Mocek made a request for certain documents. And

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paragraph 2 is an introductory paragraph vaguely alleging that Mocek “and/or” MuckRock

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submitted a records request.
C.

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ELSTER LACKS STANDING TO PROCEED AGAINST MUCKROCK
BECAUSE MUCKROCK IS IMMUNE FROM SUIT UNDER FEDERAL
LAW

Even if Elster had alleged any involvement by MuckRock, MuckRock must be dismissed

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due to the broad immunity granted by 47 U.S.C. § 230 (“Section 230”). Because Section 230

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provides such broad immunity from suit, Elster lacks standing to assert its trade secrets claims

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against MuckRock.
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Background Section 230 Principles.

MuckRock is an Internet intermediary protected by Section 230’s immunity from suit that

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results from hosting content provided by its users. Section 230 provides that “[n]o provider or

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user of an interactive computer service shall be treated as the publisher or speaker of any

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information provided by another information content provider.” 47 U.S.C. § 230(c)(1).

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//

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//

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//
DEFENDANT MUCKROCK FOUNDATION, INC.’S
MOTION TO DISMISS
CASE NO. 2:16-cv-00771 - 6

focal PLLC
900 1st Avenue S., Suite 203
Seattle, WA 98134
206.529.4827

 Case 2:16-cv-00771-RSL Document 40 Filed 09/19/16 Page 7 of 10

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“Under the CDA, an ‘information content provider’3 may be subject to state law liability in

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relation to content that it develops but an ‘interactive computer service’ is immune from suit for

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state law claims in relation to merely hosting such content on a website.” J.S. v. Village Voice

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Media Holdings LLC, 184 Wn.2d 95, 101 (2015) (quoting Carafano v. Metrosplash.com, Inc.,

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339 F.3d 1119, 1123 (9th Cir. 2003)) (footnote in original; other footnotes omitted).
Importantly, Section 230 provides immunity from suit for interactive computer services,

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not just liability: “No cause of action may be brought and no liability may be imposed under

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any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3) (emphasis

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added). “By its plain language, [Section] 230 creates a federal immunity to any cause of action

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that would make service providers liable for information originating with a third-party user of the

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service.” Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997); see also Backpage.com,

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LLC v. McKenna, 881 F. Supp. 2d 1262, 1273 (W.D. Wash. 2012) (invalidating SB 6251, which

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“criminalized the ‘knowing’ publication, dissemination, or display of specified content,” because

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of conflict with Section 230); Kimzey v. Yelp Inc., 21 F. Supp. 3d 1120, 1122 (W.D. Wash.

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2014), aff’d, 2016 U.S. App. LEXIS 16665 (9th Cir. Wash., Sept. 12, 2016) (“CDA immunizes

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providers of interactive computer services against liability arising from content created by third

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parties”).
2.

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Section 230 applies in this case and bars the claims against MuckRock, all of which arise

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The Claims Against MuckRock Fall Within Section 230.

from MuckRock hosting the content of third-parties on its website.

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MuckRock is plainly a provider of an “interactive computer service” under Section

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230(c)(1). An “interactive computer service” is “any information service, system, or access

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software provider that provides or enables computer access by multiple users to a computer

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server, including specifically a service or system that provides access to the Internet and such

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An “information content provider” is “any person or entity that is responsible, in whole or in
part, for the creation or development of information provided through the Internet or any other
interactive computer service.” 47 U.S.C. § 230(f)(3).
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DEFENDANT MUCKROCK FOUNDATION, INC.’S
MOTION TO DISMISS
CASE NO. 2:16-cv-00771 - 7

focal PLLC
900 1st Avenue S., Suite 203
Seattle, WA 98134
206.529.4827

 Case 2:16-cv-00771-RSL Document 40 Filed 09/19/16 Page 8 of 10

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systems operated or services offered by libraries or educational institutions.” 47 U.S.C.

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§ 230(f)(2).

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The claims also treat MuckRock as the publisher of the allegedly offending content. But

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MuckRock merely provides a platform for the publication of content created and/or provided by

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others. MuckRock provides an online service to its users that allow them to draft, file, and

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catalog their public records requests and the responsive documents they receive. Morisy Decl. ¶¶

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2-8. By default, MuckRock publishes all correspondence and documents its users receive via

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their public records requests on its website. Morisy Decl. ¶ 3. This automatic posting is a

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function of the platform MuckRock provides for its users, and MuckRock has no control over the

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requests its users make or the public records users receive from governmental agencies as a

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result of such requests.

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This is precisely what occurred in this case. Mocek used the MuckRock platform to file a

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public records request with Seattle. Morisy Decl. ¶ 9. Because Mocek retained the default

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settings to his MuckRock account, all correspondence with Seattle and any documents Seattle

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provided were automatically posted to MuckRock’s website. Morisy Decl. ¶¶ 10-11.

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3.

Elster’s Trade Secrets Claims do not Fall Within Any Exception.

Section 230’s limited exception for “intellectual property” claims, 47 U.S.C. § 230(e)(2),

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does not apply to state law trade secret claims such as those at issue here. The Ninth Circuit has

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construed Section 230’s intellectual property exception to be limited to federal intellectual

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property claims, namely, copyright and patents. Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102,

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1119 (9th Cir. 2007). Thus, even if a state trade secret claim were considered an intellectual

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property claim–which it should not be–Section 230 would nevertheless bar it. See Stevo Design,

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Inc. v. SBR Mktg., 919 F. Supp. 2d 1112, 1125 (D. Nev. 2013) (Section 230 provided a website

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immunity from state law trade secrets claims).

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Recent amendments to federal law confirm that trade secret claims do not fall within

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Section 230’s narrow intellectual property exception. The Defend Trade Secrets Act of 2016,

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which created a federal law claim for trade secret infringement, specifically states that “[t]his
DEFENDANT MUCKROCK FOUNDATION, INC.’S
MOTION TO DISMISS
CASE NO. 2:16-cv-00771 - 8

focal PLLC
900 1st Avenue S., Suite 203
Seattle, WA 98134
206.529.4827

 Case 2:16-cv-00771-RSL Document 40 Filed 09/19/16 Page 9 of 10

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section and the amendments made by this section shall not be construed to be a law pertaining to

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intellectual property for purposes of any other Act of Congress.” Pub. L. 114-153, §2, 130 Stat.

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376, 382 (May 11, 2016). This provision was specifically included to negate arguments that

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Congress broadened the intellectual property exception to Section 230 to include state or federal

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law trade secret claims. Section 230’s limited intellectual property exception thus remains inapt

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in cases involving state trade secrets claims against Internet intermediaries like MuckRock.

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CONCLUSION

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For the above-stated reasons, this Court must dismiss all of Elster’s claims against

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MuckRock.
DATED: September 19, 2016

Respectfully submitted,

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FOCAL PLLC
By: s/ Venkat Balasubramani
Venkat Balasubramani, WSBA No. 28269
900 1st Avenue S., Suite 203
Seattle, WA 98134
Tel: (206) 529-4827
Fax: (206) 260-3966
venkat@focallaw.com
Attorney for MuckRock Foundation, Inc.

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DEFENDANT MUCKROCK FOUNDATION, INC.’S
MOTION TO DISMISS
CASE NO. 2:16-cv-00771 - 9

focal PLLC
900 1st Avenue S., Suite 203
Seattle, WA 98134
206.529.4827

 Case 2:16-cv-00771-RSL Document 40 Filed 09/19/16 Page 10 of 10

CERTIFICATE OF SERVICE

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I hereby certify that on September 19, 2016, I electronically filed the foregoing with the

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Clerk of the Court using the CM/ECF system which will send notification of such filing to all

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defendants who have signed up for CM/ECF. I separately caused a copy of the foregoing to be

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mailed to Phil Mocek.

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DATED: September 19, 2016

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s/ Venkat Balasubramani
Venkat Balasubramani, WSBA No. 28269

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DEFENDANT MUCKROCK FOUNDATION, INC.’S
MOTION TO DISMISS
CASE NO. 2:16-cv-00771 - 10

focal PLLC
900 1st Avenue S., Suite 203
Seattle, WA 98134
206.529.4827